Government stays mute as Japan ups the ante in whaling conflict

As we count the costs of Antarctic whaling protest so far this season, the Gillard government's spin is obscuring the real damage.

Ever since the brave rescue of the French solo sailor, Isabelle Autissier, by HMAS Darwin in 1995, the price of retrieval of responsible adults who put themselves at risk in the Southern Ocean has been a touchy point for Australians.

That contrasts with the enthusiasm with which the government repeatedly chastised three forest activists over the costs of their boarding of the Japanese whaling security ship, Shona Maru No.2 (SM2), off Bunbury, Western Australia.

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How much these activists actually helped the anti-whaling cause is one debate.

But let's get some perspective here.

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Customs says: "The retrieval of the three anti-whaling protestors had direct additional costs to Customs of $155,000. This included costs for fuel, berthage and support services.

"This is in addition to the regular operating costs of the ACV Ocean Protector during the nine-day period, which were approximately $906,000. Unfortunately, the nine days spent retrieving the three protesters were lost to Customs in their fisheries enforcement patrol."

Hang on.

It needs to be said that Japan did not make this cheaper for Australia. For the whalers' own reason — maintaining pursuit of Sea Shepherd's Steve Irwin — the SM2 took the activists from near the Western Australian coast far into the Southern Ocean. It took Ocean Protector three of those nine days to catch up and more days to get back to its starting point.

It's also time to say that Ocean Protector's task of fisheries enforcement in the Southern Ocean is useful, not critical. Illegal catches of toothfish are estimated to have fallen by 95 per cent from peak levels.

Banging the costs drum contrasts with the muted public response by Prime Minister Julia Gillard to this year's real shift in the whaling conflict — the escalation of Japan's insistence on its rights at sea.

Incursions by the whaling fleet into uncontested Australian waters are entirely new. Before this summer, no Japanese whaling ship even steamed through mainland Australia's 200 nautical mile Exclusive Economic Zone (EEZ).

In fact the evidence was that they went to extraordinary lengths to stay clear.

Yet two of the fleet's ships this year came far inside the EEZ in their determination to track Sea Shepherd.

Any ship has the right of "innocent passage" through another country's 200 nautical mile exclusive economic zone. But when it comes to a nation's 12-mile territorial limit, domestic laws apply — for example the laws of a whale sanctuary.

Yet, these whaling ships were not on the innocent passage that gives them the right to transit an EEZ. They were taking the Japanese government's fight into our domestic waters — inside the 24-nautical mile contiguous zone off Western Australia, and inside the 12-mile limit of territorial waters off Macquarie Island, Tasmania.

Asked at a press conference last week whether Japan had got the message to stay out of Australian waters, Gillard was unable to give any assurance that there would be no further incursions. She merely recited recent history.

"We have stated to the government of Japan on more than one occasion that whaling vessels are not welcome in our territorial waters," she said. "There was a boat that did come into our territorial waters. We reiterated to the government of Japan that those ships are not welcome. And that vessel left our waters."

Last December, before any of this happened, Chilean environmentalist Elsa Cabrera looked at the extra funding and scaled-up security for the whalers this season.

She wrote a warning commentary that suggested Japan was now engaging in an aggressive, expansionist policy in the Antarctic, setting a dangerous precedent for future potential resource conflicts.

Cabrera said the lack of a concrete, effective response allowed the Japanese government to trespass legal and ethical limits that not only threatened the whales, but also governance of the Southern Ocean and principles of the Antarctic Treaty.

I once had the privilege of watching a lawyer, who worked with the Commonwealth Director of Public Prosecutions, informally take on a South African fisherman.

Having poached our nearly exhausted orange roughy stocks one winter, this man turned up at an international meeting in Hobart a few months later, smiling over a cocktail.

The lawyer faced him down straight away. "You come back, and I'll prosecute you," she said, turning his face to stone.

Australia's prosecution against Japan in the International Court of Justice is over the falsity of "scientific whaling". It will meander along for another few years before there is any determination.

Meanwhile, the game has changed and the government has not kept up. In our own southern waters, we can but wish for that lawyer's kind of decisive border protection.